The omnibus appropriations bill, which passed the House and Senate this past Friday and Saturday, included numerous environmental and energy riders, but it left out one that would have prevented the U.S. Army Corps of Engineers (ACOE) from clarifying what is a "water of the United States." Some environmentalists claimed that such a rider would have denied the Clean Water Act's protection to one-fifth of the nation's wetlands and nearly two million miles of streams.

What is a "water of the United States" has been the subject of three U.S. Supreme Court decisions and multiple rounds of guidance by the Environmental Protection Agency (EPA) and the ACOE. In 1985, the Supreme Court first held that wetlands adjacent to traditional navigable waterways were "waters of the United States."1 In 2001, the Supreme Court decided that non-adjacent wetlands were not protected based solely on seasonal migratory bird use.2 Finally, in 2006, the Court ruled 4-1-4 in Rapanos v. United States that the Clean Water Act did not cover wetlands connected to traditional navigable waters by drainage ditches and non-navigable creeks.3 However, the Supreme Court split on the standard to be applied to determine what is a "water of the United States" subject to Clean Water Act jurisdiction, so circuit courts have done the same. The Seventh and Eleventh Circuits have used Justice Kennedy's more expansive "significant nexus" test, while the Third Circuit recently4 joined the First and Eighth Circuits in applying both Kennedy's test and Scalia's "relatively permanent" or "continuous surface connection" standard.

In 2003 and 2008, EPA and the ACOE co-produced guidance attempting to resolve the confusion created by the Supreme Court's decisions and the failure of Congress to address that confusion. The most recent guidance that EPA and the ACOE proposed in April 2011 sparked Congressional opposition. That draft guidance more expansively defines waters of the United States and uses that expanded definition for all Clean Water Act provisions (the existing guidance was limited on its face to Clean Water Act Section 404 determinations). A rider denying funding for the 2011 guidance was first introduced by Sens. Barrasso (R-Wyo.) and Heller (R-Nev.) as an amendment to the House version of the proposed spending bill. The House approved the amendment in July, and the Senate was poised to vote on the same amendment when the current version of the bill passed both houses without the rider. GOP congressional leadership has also opposed the 2011 guidance through a November 8, 2011 letter which faulted the guidance for misinterpreting the Supreme Court decisions.5

EPA and ACOE recently agreed to finalize their interpretation of a "water of the United States" in a final rule rather than going forward with the April 2011 guidance. EPA advises that it will propose a rule for public comment in 2012. Such a final rule would likely fare better in the courts.6 Even if "waters of the United States" is further defined in a final rule, unless and until Congress acts, the term is sure to be the subject of continued debate.

Footnotes

1 U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).

2 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

3 Rapanos v. United States, 547 U.S. 715 (2006).

4 U.S. v. Donovan, 2011 WL 5120605 (3d. Cir. 2011).

5 http://www.eenews.net/assets/2011/11/08/document_pm_01.pdf.

6 As part of a growing trend, a D.C. district court recently invalidated EPA guidance on mining permits because it did not follow traditional notice and comment rulemaking procedures. National Mining Association v. EPA, 2011 WL 4600718 (D.D.C. Oct. 6, 2011).

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